June 30, 2016 -- The Retail Industry Leaders Association (RILA), issued the following statement in response to a rulingfrom the U.S. Second Circuit Court of Appeals to throw out a grossly flawed settlement of antitrust litigation that had been filed to shine light on the illegally anti-competitive practices that Visa, MasterCard and the major banks use to set the fees that merchants -- and ultimately consumers -- pay on all credit and debit card transactions. As a member of the class, RILA formallyopted out and objectedto the settlement in 2014.
“RILA enthusiastically welcomes the circuit court’s decision to throw out this harmful settlement,” said Deborah White, executive vice president and general counsel. “Quite simply, the settlement orchestrated by the card networks and banks would have undermined merchants’ legal rights forever and would have allowed Visa and MasterCard to impose higher and higher swipe fees with impunity. Today’s decision is a victory for all merchants and consumers.”
Specifically, the court concluded that “the class plaintiffs were inadequately represented in violation of Rule 23(a)(4) and the Due Process Clause. Accordingly, we vacate the district court’s certification of this class action and reverse the approval of the settlement.”
In a concurrence to the court’s decision, Judge Pierre Leval said, “This is not a settlement; it is a confiscation.”
RILA, along with a majority of the named class plaintiffs and many more within the merchant community, has argued that the settlement fails to address the anti-competitive practices that were the genesis for the lawsuits and denies merchants their right to challenge these practices ever again in court. Specifically, RILA argued that the terms of the settlement:
Lock in the Visa/MasterCard duopoly,
Provide no relief from interchange rate setting or other rules,
Denies all current and future retailers their right to bring future legal action related to interchange rules and rate setting, among other things, against Visa, MasterCard and the banks, and
Could limit emerging innovations that can bring meaningful competition to the marketplace, such as mobile payments.
Ernie Schell is Director of consultancy Marketing Systems Analysis. He has over twenty years experience consulting with direct marketing, eCommerce, and fulfillment companies in specifying, selecting, and implementing order entry, fulfillment and eCommerce systems.
Ernie was Editor of Target Marketing from 1981 to 1983. Since founding his own consulting firm, he has contributed hundreds of articles and reviews to Catalog Age, Operations and Fulfillment, Target Marketing, Catalog Success, and Multichannel Merchant magazines. He is a regular speaker at the National Conference on Operations & Fulfillment, and makes presentations at numerous other business and marketing conferences in the US and the UK.